Bradley attorney Aron Beezley was quoted in Law360 on an Arizona federal court’s decision that it lacks jurisdiction over protests of prototyping deals, which has possibly taken away unsuccessful bidders’ last clear method to dispute those agreements and could motivate the Pentagon to further increase its use of the deals.
With that decision, dismissing MD Helicopters Inc.'s protest over its exclusion from a U.S. Army Other Transaction Agreement (OTA) for armed reconnaissance helicopter designs, the district court left a jurisdictional black hole for OTAs that will likely require an appeals court — or Congress — to clear up, said Beezley.
"As things currently stand, companies who are looking to participate in the OTA process and who find themselves aggrieved, such companies do not have a clear remedy," Beezley said. "That just can't be the case."
"If the GAO generally doesn't have jurisdiction, the Court of Federal Claims does not clearly have full jurisdiction, and the district courts do not clearly have jurisdiction, then who does?" Beezley said.
Given the increasing frequency of OTA awards, protest jurisdiction is something that the Ninth Circuit — and perhaps ultimately the U.S. Supreme Court — is likely going to be asked to weigh in to provide additional clarity, Beezley said.
It is also possible that there will be "an increased push to have Congress clarify whether these types of actions are in fact reviewable, and in what form," he said.
The complete article, “Court Cuts Off Last Avenue For Prototype Deal Protests,” first appeared in Law360 on January 31, 2020. (login required.)